Bombay High Court
The United India Insurance ... vs Nasreen Siraj Shah And Anr on 6 May, 2022
Bench: Bharati Dangre
Digitally signed by
JAYARAJAN JAYARAJAN
ANJAKULATH ANJAKULATH NAIR
NAIR Date: 2022.05.07
16:16:17 +0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL (STAMP) NO.5145 OF 2021
ALONG WITH
INTERIM APPLICATION NO.989 OF 2022
The United India Insurance Co. Ltd. ] ... Appellant
Vs.
Nasreen Siraj Shah & Anr. ] ... Respondents
...
Mr. Rahul Mehta i/b KMC Legal Venture for the appellant.
Mr. Baliram V. Kamble for the respondent No.1 and for the
applicant in Interim Application No.989 of 2022.
...
CORAM : SMT. BHARATI DANGRE, J.
DATED : 06TH MAY, 2022.
P.C. :-
1. The present appeal is filed by the Insurance Company,
assailing the impugned judgment, limiting the challenge to the
quantum of compensation awarded by the MACT, Thane, on an
application filed under Section 166 of the Motor Vehicles Act, by
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the mother of the deceased Fahim.
2. Since a limited point is involved in the appeal and the
private paper-book in the form of evidence is brought on record,
the respective counsel have expressed their consensus to argue the
appeal, finally.
3. One Fahim Shah was riding his motorcycle bearing No.MH-
04-HB-3278 on 18/01/2018 at about 9.00 p.m. and proceeding
towards Bhole Nagar and when he reached near Khardi village,
the offending truck bearing No.RJ-19-GE-4186 came from behind
in high speed, in a rash and negligent way, and knocked down the
motorcycle. Deceased Fahim sustained injuries and was removed
to Kalsekar Hospital, Mumbra, where he was declared dead.
4. The accident is alleged to have taken place due to negligent
driving of the offending vehicle, which was owned by Opposite
Party No.1 and is insured with Opposite Party No.2 from
27/11/2017 to 26/11/2018 and on the date on which the accident
took place the vehicle was insured with the insurer, who is the
appellant. The accident resulted in registration of C.R. No.I-14 of
2018 with Shil Daighar Police Station.
5. On account of his death, his mother filed a claim petition
before the MACT, seeking compensation for herself. She pleaded
that her son Fahim was serving as Gym Instructor in Pilates Studio
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at Business Plaza, Gazadar Bandh Road, Santacruz (West) and
earning a monthly salary of Rs.30,000/-. His age was pleaded to
be 26 years and it was pleaded that in due course of time his salary
could have been raised to Rs.50,000/-.
6. The Insurance Company opposed the petition by filing
written statement (Exh.-20) and did not dispute that the policy
covered the offending vehicle during the relevant time. However,
his age, income, expenses and the compensation claimed in the
petition were denied. It was also submitted that the deceased
himself was negligent in driving his motorcycle and he was a tort
feasor, which dis-entitled him to avail any compensation.
7. In support of his claim, the claimant herself stepped into the
witness box though she was not an eye-witness, based on the
relevant material available, she deposed that the accident took
place on account of rash and negligent driving and her son
succumbed to the injuries sustained by him in the accident.
Bringing on record, the FIR, spot panchanama, inquest
panchanama and postmortem report, she claimed that the accident
is a result of rash and negligent driving of the offending vehicle
and her son was not attributed, in any way, in the accident.
8. Another witness examined is Hamid Sayyed, working in
Pilates Studio in Santacruz, where late Fahim was engaged as a
Gym Instructor. The said witness deposed that Fahim was
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working as a Gym Instructor from 2016. He has deposed that the
deceased was a permanent employee of Pilates Studio and was
getting a gross salary of Rs.30,000/- per month and one month
salary as annual bonus and the salary slip was issued to him by the
office. The salary slip for the month of December, 2017 was
brought on record by him. It shows his net salary as Rs.29,800/-
after deduction of professional tax of Rs.200/-. Apart, he has also
brought on record I.T. Return Form No.16 (Exh.-40). In the cross-
examination, the witness admits that the appointment letter did
not bear the signature of the deceased and he had no personal
knowledge about the documents. He however, admitted that the
salary paid to the deceased is reflected in the I.T. Return, though
he has not brought the income tax record of the firm. The ledger
account is admitted to be computerized and the same was not
accompanied with the certificate issued under Section 65-B of the
Evidence Act.
9. Appreciating the evidence that was placed before the
Tribunal, the gross salary of the deceased was accepted to be
Rs.30,000/- based on the salary certificate as well as the I.T.
Return Form No.16. The learned counsel has justified in
submitting that the salary certificate, which is extracted from the
computer is not accompanied by the certificate issued under
Section 65-B of the Evidence Act, making it inadmissible in
evidence. However, the I.T. Return, which depicts the salary of
the employee, is a conclusive proof of his earnings and by
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deducting the professional tax of Rs.200/- per month, which
comes to Rs.2,400/- per year and conveyance allowance of
Rs.19,600/- per annum, the learned Tribunal has arrived at a figure
of Rs.22,000/-, to be deducted from his annual income. Based on
the aforesaid calculations, the compensation has been awarded in
paragraph No.20 of the impugned order. Considering that the
deceased was in permanent job, his future prospect was taken as
40% and calculated at Rs.11,49,200/-. He was thus held entitled to
a compensation of Rs.40,22,200/-.
10. Since the Insurance Company makes a challenge to the
impugned judgment only on the ground of quantum of
compensation and, particularly on the earnings of the deceased, in
my considered opinion, the Tribunal was perfectly justified in
computing the income based on I.T. Return Form No.16. Since no
legal infirmity can be found in the impugned order, the appeal
deserves a dismissal.
11. In the wake of the above, the appeal is dismissed. The
claimant is entitled to the amount of compensation deposited in the
Tribunal along with interest.
12. The amount of Rs.25,000/-, which is deposited in this court,
as statutory deposit, shall be remitted to the Tribunal to enable the
appellant to withdraw the same.
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13. In view of the disposal of the appeal, the interim application
does not survive and is disposed off as such.
[SMT. BHARATI DANGRE, J.]
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